A unanimous five-judge New York appeals court panel has rejected the argument that an HIV-positive man should face felony charges, carrying a mandatory minimum prison term, for exposing another person to the virus by failing to disclose his serostatus before having unprotected sex.

Turning back an appeal by Syracuse District Attorney William Fitzpatrick’s office, the November 15 opinion from the Fourth Department of the New York Appellate Division affirmed a ruling by Onondaga County Supreme Court Justice John J. Brunetti that reduced the charge to a misdemeanor.

According to the court’s opinion, Terrance Williams “engaged in unprotected sex with the victim on two to four occasions without disclosing his HIV-positive status.” After their sexual relationship ended, Williams informed the victim that a former sex partner had tested positive for HIV and urged the victim to be tested. The victim, whose gender is not identified in the opinion, was diagnosed as HIV -positive several months later and complained to law enforcement.

Indicted on the charge of “reckless endangerment in the first degree,” a Class D felony, Williams faced a potential prison sentence of two to seven years. Conviction on this felony charge requires proof that “under circumstances evincing a depraved indifference to human life, [the defendant] recklessly engages in conduct which creates a grave risk of death to another person.”

Kristen McDermott of the Frank H. Hiscock Legal Aid Society in Syracuse, representing Williams, moved to have the charges reduced, arguing the facts would not support the felony charge. Williams told police “he did not disclose his HIV-positive status to the victim because he was afraid [the victim] would not want to be with” him and that he “loved [the victim] so very much.”

When he found out the victim tested positive, Williams wrote a letter apologizing “because he was ‘so upset’ and ‘felt terrible,’” according to the court’s opinion. Williams’ attorney argued that these facts would not support a finding that he exhibited “depraved indifference to human life” or that his conduct created “a grave risk of death to another person.”

Testimony offered by victim’s doctor ended up supporting Williams’ motion. According to the court’s opinion, the doctor, “an infectious disease expert, testified that the ability to treat HIV has increased dramatically over the past 15 years, with over 20 different anti-viral medications available for treatment. The expert testified that although an HIV-positive diagnosis may have been tantamount to a death sentence in the past, with treatment, the prognosis today is ‘outstanding,’ particularly when a patient promptly learns that he or she is infected and seeks treatment. Indeed, the expert testified that patients with HIV who take their medication, eat well, do not smoke, and reduce their alcohol intake can live a ‘very healthy, normal lifestyle,’ and he expected a similar prognosis for the victim.”

Justice Brunetti agreed with the defendant that he had been over-charged, and reduced the charge to “reckless endangerment in the second degree,” a Class A misdemeanor with a maximum prison sentence of one year. The district attorney appealed that ruling to the Appellate Division.

“Although defendant may have acted with indifference to the victim’s health, his conduct lacked the ‘wanton cruelty, brutality, or callousness’ required for a finding of depraved indifference toward a single victim,” the appeals court wrote. “The fact that defendant encouraged the victim to be tested for HIV indicates that defendant ‘was trying, however weakly and ineffectiv­ely,’ to prevent any grave risk that might result from his conduct.” And, the testimony from the victim’s doctor –– which was not contradicted by any other evidence –– “failed to establish that defendant’s reckless conduct posed a grave or ‘very substantial’ risk of death to the victim,” the court found.

The Appellate Division ruling stands in stark contrast to rulings from other jurisdictions upholding lengthy prison sentences in similar situations, usually citing outdated medical sources about the risk of death from HIV infection. Rulings of this type typically are issued in jurisdictions that have specific laws criminalizing the knowing exposure of another person to HIV and mandating severe sentences. New York instead handles HIV transmission under its general penal code, leaving the courts the flexibility to take account of new medical information.

If Williams is a first offender, he may avoid prison time altogether, though the prosecutor’s pursuit of a felony charge doesn’t suggest that a lenient plea-bargain is in the offing.

Reader feedback

Michael says:

Stop the prosecution of HIV infections..It takes 2 people to have sex and they are both responsible for whatever is transmitted. Even if one of the partners knows their status.(Shame on them). It takes 2 to tango and STD's are rampant but we dont prosecute people for any of the other STD transmissions, which can be worse (i.e. Syphilis, resistant Gohnareha ).. I dont care what anybody says thier status is... in todays world protection should be applied NO MATTER WHAT unless you choose not to be protected .. if you get infected with anything ..in a Relationship, Marriage or single, it is no ones fault but your own you make the choice to have sex and with who.... HIV is not a death sentance anymore.. People are living normal lives with HIV ...some even better .. because they cleaned up thier act and started making better life decisions because of it...